2017 (12) TMI 825 - AT - Central Excise

CENVAT credit - Rule 3 (5) of CCR, 2004 - Held that - the audit party should have either themselves or through other officers get a panchnama made and proper statements should have been recorded. In the absence of these, mere observations of the audit party cannot be considered as an evidence - merely because some data on the computerized invoices are written by hand not sufficient to hold that such invoices are bogus and fabricated - appeal allowed - decided in favor of appellant.

Summary

Issues:
Alleged violation of Rule 3 (5) of Cenvat Credit Rules, 2004 leading to demand for reversal of Cenvat Credit; Imposition of penalty on the appellant; Fabrication of invoices for clearances of capital goods.

Analysis:
The appeal involved a case where M/s. Kruger M&E Industries (India) Pvt. Ltd. contested the demand for reversal of Cenvat Credit amounting to ?29,47,850 based on an audit report alleging violation of Rule 3 (5) of Cenvat Credit Rules, 2004. The appellant's Finance Manager argued that the audit report claimed the removal of capital goods to another unit, but they were unaware of any such interaction during the audit. The appellant voluntarily reversed the credit along with interest upon removal of the goods, emphasizing that no loss was incurred by the Government. The Manager contended that the penalty imposed was unjustified due to the reversal of credit on their own initiative.

The Assistant Commissioner (AR) representing the respondent argued that the appellant had issued invoices for the clearances of goods, but claimed that the hand-written parts on the invoices indicated fabrication. It was alleged that the computerized invoices with hand-written details were not genuine, suggesting manipulation. The audit team reported that they found the capital goods removed during their visit to the premises, emphasizing the discrepancy between the invoices and the actual status of the goods.

Upon review, the Member (Technical) found that the allegations were solely based on the audit party's observations without concrete evidence to support the claim that capital goods were not present in the factory premises during the audit. The Member emphasized that mere observations could not substitute proper evidence, suggesting that a panchnama and recorded statements should have been obtained to establish the facts accurately. Additionally, the Member dismissed the argument that hand-written parts on invoices indicated fabrication, stating that such discrepancies were not sufficient to deem the invoices as bogus.

Ultimately, the Member set aside the impugned order, allowing the appeal on the grounds of lack of substantial evidence to support the allegations. The judgment was pronounced in court on 30/10/2017, ruling in favor of M/s. Kruger M&E Industries (India) Pvt. Ltd., thereby overturning the demand for reversal of Cenvat Credit and the imposed penalty.